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Jonathan Turley: Think twice about why the media attacks William Barr



Two years ago, I criticized President Trump for his endless attacks on then-Attorney General Jeff Sessions. Now, Attorney General William Barr is being similarly attacked by Trump critics, and some media coverage shows the same kind of blind rage without reason.

While I have criticized Barr for some of his policies and actions, he is someone I have known personally for years and even represented with other attorneys general in the Clinton impeachment litigation. Piling on Barr has never been more popular — but the basis for this criticism has never been weaker. Three particular news stories seemed to break entirely free from any factual or legal moorings, and no one seemed to care.

The Flynn case

The Michael Flynn case this week has been much in the news, including a congressional hearing exploring Barr’s involvement. Of course, for Barr to be thoroughly immoral, the Flynn case must be portrayed as virtually immaculate. Thus, the coverage has steadfastly ignored disclosures over how the FBI pushed unrelentingly for any criminal charge against Flynn, allegedly withheld exculpatory evidence, and gave misleading statements to the trial court.

Confirming these facts seems immaterial to the criticism. Even my colleagues at George Washington University, from which Barr graduated, signed a letter denouncing him over the Flynn case despite new facts unfolding. The letter is well written and raises a number of legitimate issues. However, some of us felt it reached conclusions before establishing any facts.

For example, the letter emphasized the Flynn case and praised the work of retired federal Judge John Gleeson in arguing against its dismissal — an appointment by trial Judge Emmet Sullivan that some of us criticized as alarming and unwarranted. The letter praised Gleeson’s “deeply researched” brief that “persuasively” showed “gross prosecutorial abuse.” The faculty concluded that it was, therefore, established that “the attorney general once again sought to do a favor for the president.”

A day after the letter was signed, the District of Columbia Circuit Court issued a virtually unprecedented opinion ordering Sullivan to dismiss the case and specifically criticized Gleeson’s brief as an example of Sullivan’s “irregular” course of conduct and “suggests anything but a circumscribed review.” It noted that the brief was based on little more than “news stories, tweets, and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution in other cases.”

Two days later, new evidence further supported the Justice Department position that no legitimate investigation was tied to the FBI’s original interview of Flynn, a key element for a prosecution. Notes from fired FBI special agent Peter Strzok reveal that then-FBI Director James Comey told former President Obama and former Vice President Joe Biden that Flynn’s call with Russia’s ambassador was “legit” from the start — this, after FBI agents sought to end their investigation of Flynn for lack of evidence. Yet they continued to explore a way to charge Flynn on any crime, including the Logan Act, a law widely viewed as unconstitutional.

The Berman matter

Last week, Barr announced that Geoffrey Berman, the United States attorney for Manhattan, was “stepping down” to make way for the appointment of Jay Clayton, chairman of the Securities and Exchange Commission. Clayton wanted to return to New York and expressed an interest in the position. Barr told Berman that he and President Trump wanted the two men to swap positions or Berman could take over the Justice Department's Civil Division. Berman said he wanted t o think about it, but Barr went ahead and announced the change.

Berman issued a public statement with a line strongly suggesting his removal was an effort to influence pending investigations of Trump associates. The media exploded, and various people called for the impeachment of Barr. Meanwhile, serious journalists such as Pete Williams confirmed sources as saying the move had nothing to do with those investigations. There has been no credible allegation that Barr has hampered those investigations since becoming attorney general, and he told United States attorneys in Manhattan to report any such interference to the Justice Department inspector general.

I personally do not agree that Clayton is the best choice for the spot. However, the substantive question is whether, as reported, Barr was trying to influence the Trump investigations. There is no evidence, but much coverage, to support that proposition.

The Cohen matter

By week’s end, the attacks on Barr returned to the Michael Cohen case. The New York Times reported that Barr sought to influence the case involving Cohen, “Trump’s long time fixer.” The Daily Beast derided Barr’s insistence “that it’s nothing but a ‘media narrative’ to suggest he’s acting in the president’s personal interests.”

The Daily Beast repeatedly refers to Cohen as a close friend and confidant of President Trump without mentioning once that, by the time Barr raised questions about Cohen’s case, Trump despised Cohen and openly celebrated his conviction. The only person who would have been more upset by the undermining of Cohen’s conviction than the lead prosecutor would have been Trump.

The United States attorneys manual expressly reaffirms the control of Main Justice over such interpretative policies, even though Barr apparently let it drop. Readers were also never told that Barr has a long-standing position against such expansive reading of the criminal code on offenses such as those with which Cohen was charged. Indeed, in Barr’s confirmation hearing, I noted that Barr, as a private citizen, contacted the Justice Department to protest charges against Sen. Bob Menendez (D-N.J.) on overly broad interpretations; Barr had no connection to Menendez. Was he also currying favor with Trump in that case by raising the issue before becoming attorney general? Not likely.

Barr was confirmed in February of last year. Soon after, Trump denounced Cohen as “lying in order to reduce his prison time.” So Barr was questioning the prison sentence that Trump was celebrating, and seeking “a legal memo casting doubt on the legitimacy of Cohen’s conviction.”

Legitimate objections can be raised about Barr’s policies; I’ve criticized him for some of those, and we have disagreed for decades over constitutional law and executive branch power. However, I’ve never known a more honest, direct person in Washington. Barr’s real flaw is his lack of concern over the optics of his actions; he spends much time thinking about the right action to take and little time about how it is presented or perceived.

As past weeks’ coverage has shown, Barr — to take a line from “King Lear” — is “a man more sinned against than sinning.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.


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Posted: June 27, 2020 Saturday 10:00 AM